Since I still have time to read news online, I still have time to post the interesting articles that I stumble across. Sorry to deprive ya'll of my rambling commentary (and possibly euphuistic writing style, if you agree with a certain friend of mine).
The court battle over the fate of several Mexican nationals on death row in Texas continues:
http://www.scotusblog.com/wp/move-to-head-off-medellin-execution/#more-7753
This is a tricky situation where the need to respect the "law" as a sort of meta-institutional ideal might trump expedient "justice" (at least in a retributive form, these guys were convicted of gang rape and murder).
Also back in the legal headlines is Joseph Heller, the plaintiff in the landmark DC handgun case. He's challenging the changes that the District of Columbia made in response to the Court's ruling in DC v. Heller (which I still want to flesh out in a blog post): http://www.law.com/jsp/article.jsp?id=1202423333307
This is only the first of what will most likely be many, many lawsuits that are designed to test the limits/clarify Justice Scalia's vague opinion.
Friday, August 1, 2008
Wednesday, July 23, 2008
Game Off
Folks: things have gotten a little crazy for me and I'm going to have to take a break from blogging for a bit. À plus tard.
Friday, July 18, 2008
Thursday, July 17, 2008
This Just In: A Need for Better Explanatory Graphics
A federal judge ruled that the military tribunals in Gitmo can proceed under the MCA, the Congressionally-designed legal proceedings that deal with "enemy combatants." When I first saw this, I was very confused. Didn't the Supreme Court rule in Boumediene that detainees had standing to bring habeas challenges in normal US courts? Well, turns out that many judges are reading Boumediene rather narrowly. So although detainees that are being held without charges can challenge their detentions in habeas proceedings in US courts per Boumediene, if formal criminal charges have already been leveled, as in Hamdan's case, under the MCA, an appeal can only occur once a final judgment has been rendered in a military trial. I'm still trying to wrap my head around all this but maybe this rudimentary flow chart that I worked out will be more helpful than the previous, clunky, clause-ridden sentence.
Hamdan was charged with war crimes --> MCA trial to go forward --> Hamdan moves to delay the trial, challenging the constitutionality of the MCA tribunals, asserting Hamdan's right to a habeas proceeding in US court, and arguing that the war crimes charges are actually ex post facto laws* --> a great Judge (who originally ruled against Bush's detention powers) rules that because there are pending criminal charges against Hamdan, under the MCA, his case has to proceed in Gitmo's military court and that any appeals must come after a final judgment has been rendered.
*The ex post facto claim went before a military judge as part of a separate defense strategy.
I guess the most important thing to remember is the distinction between Hamdan's defense arguments. On the one hand, his lawyers assert that he is being unlawfully detained. Thus, under Boumediene, he should get a habeas trial. On the other hand, Hamdan is challenging the constitutionality of the military tribunals to hear his case (mostly because of evidentiary deficiencies).
I find the ex post facto claim to be the most perplexing because it looks like the courts will sanction the MCA legal proceedings as long as criminal charges are made against the detainees. Will some of the 240 detainees pursuing habeas claims in light of Boumediene suddenly find themselves charged with war crimes, thereby nullifying their habeas proceedings and sending their cases straight to the tribunals? That the issue of ex post facto charges went before a military tribunal in Hamdan's case is also distressing. One of the biggest problems with the tribunals is that they have a vested interest in trying these cases, and, many cynics would say, returning guilty verdicts in order to vindicate the entire Gitmo detention program.
Hamdan was charged with war crimes --> MCA trial to go forward --> Hamdan moves to delay the trial, challenging the constitutionality of the MCA tribunals, asserting Hamdan's right to a habeas proceeding in US court, and arguing that the war crimes charges are actually ex post facto laws* --> a great Judge (who originally ruled against Bush's detention powers) rules that because there are pending criminal charges against Hamdan, under the MCA, his case has to proceed in Gitmo's military court and that any appeals must come after a final judgment has been rendered.
*The ex post facto claim went before a military judge as part of a separate defense strategy.
I guess the most important thing to remember is the distinction between Hamdan's defense arguments. On the one hand, his lawyers assert that he is being unlawfully detained. Thus, under Boumediene, he should get a habeas trial. On the other hand, Hamdan is challenging the constitutionality of the military tribunals to hear his case (mostly because of evidentiary deficiencies).
I find the ex post facto claim to be the most perplexing because it looks like the courts will sanction the MCA legal proceedings as long as criminal charges are made against the detainees. Will some of the 240 detainees pursuing habeas claims in light of Boumediene suddenly find themselves charged with war crimes, thereby nullifying their habeas proceedings and sending their cases straight to the tribunals? That the issue of ex post facto charges went before a military tribunal in Hamdan's case is also distressing. One of the biggest problems with the tribunals is that they have a vested interest in trying these cases, and, many cynics would say, returning guilty verdicts in order to vindicate the entire Gitmo detention program.
Friday, July 11, 2008
Say it Ain't So
Yesterday morning, I woke up to a flurry of emails from concerned participants in a Law Students for Obama list-serve that I’m on. A brouhaha had erupted over Obama’s vote for the recent FISA overhaul bill that gives immunity to telecommunications companies that provide information to the government via Bush’s warrantless wiretapping program. Plenty of people are pissed, and, in the wake of his vote, Obama even offered a justification to placate enraged supporters, consequently drawing even more scrutiny from commentators [and irate law students]. Is he succumbing to perceived political pressure from the right? Is it a shameless political move made in a desperate attempt to seem tough on national security? Is it political pragmatism? Does he really have such nuanced views about a program that operated covertly, and unconstitutionally, for years?
Frankly, I’m upset about Obama’s vote. Although I understand the argument that he needs to be pragmatic—e.g. not waste political capital fighting attack ads that portray him as “weak” on security—I think that this would have been a perfect chance for Obama to take a principled stance, go on the offensive, and reiterate his core message. Instead, he’s on the defensive, this time warding off criticism from his base instead of combating attacks from the right. Given that McCain wasn’t present on the Senate floor for the FISA vote, I don’t think that the right will get too much mileage out of all this. But I think that Obama’s FISA vote reflects, and possibly portends, some serious problems. Getting out of touch with your base on a key issue (Clinton, Dodd, et al voted against the FISA bill) might fuel the growing sentiment that Obama is wishy-washy and/or disingenuous. Why would Obama cast a vote that allows both ends to the political spectrum to brand him as a flip-flopper? Why is Obama wasting political capital defending his current position, and, in the process drawing even more attention to the disjoint between himself and the Democratic base?
But of course my real gripe is with the new FISA bill, a piece of legislation that will have some seriously negative repercussions for our civil liberties— not to mention that the bill would make it extraordinarily difficult to mount legal challenges against government surveillance measures (thanks to a fellow Obama list-server for the link).
On a final note, at least French intellectuals, not usually prone to optimism, believe that Obama is a sure thing (although the piece opens with some odd praise of McCain).
Frankly, I’m upset about Obama’s vote. Although I understand the argument that he needs to be pragmatic—e.g. not waste political capital fighting attack ads that portray him as “weak” on security—I think that this would have been a perfect chance for Obama to take a principled stance, go on the offensive, and reiterate his core message. Instead, he’s on the defensive, this time warding off criticism from his base instead of combating attacks from the right. Given that McCain wasn’t present on the Senate floor for the FISA vote, I don’t think that the right will get too much mileage out of all this. But I think that Obama’s FISA vote reflects, and possibly portends, some serious problems. Getting out of touch with your base on a key issue (Clinton, Dodd, et al voted against the FISA bill) might fuel the growing sentiment that Obama is wishy-washy and/or disingenuous. Why would Obama cast a vote that allows both ends to the political spectrum to brand him as a flip-flopper? Why is Obama wasting political capital defending his current position, and, in the process drawing even more attention to the disjoint between himself and the Democratic base?
But of course my real gripe is with the new FISA bill, a piece of legislation that will have some seriously negative repercussions for our civil liberties— not to mention that the bill would make it extraordinarily difficult to mount legal challenges against government surveillance measures (thanks to a fellow Obama list-server for the link).
On a final note, at least French intellectuals, not usually prone to optimism, believe that Obama is a sure thing (although the piece opens with some odd praise of McCain).
Thursday, July 10, 2008
The "300" School of Foreign Policy
John McCain, on the Iranian missile test:
“There’s an age old Persian ambition to have great influence and perhaps domination of the region."
Thanks, Sen. McCain. Your words evidence a deep understanding of history and will certainly help deescalate current tensions in the Middle East. While you're at it, could you expound on your erudite discussion of the differences between Sunni and Shiite Muslims?
“There’s an age old Persian ambition to have great influence and perhaps domination of the region."
Thanks, Sen. McCain. Your words evidence a deep understanding of history and will certainly help deescalate current tensions in the Middle East. While you're at it, could you expound on your erudite discussion of the differences between Sunni and Shiite Muslims?
Wednesday, July 9, 2008
Jabberwocky, Reprise
For some reason, there seems to be a recurrent theme here: whenever the Bush Administration makes an argument for executive privilege (the unitary executive theory) and the need to keep documents classified, references to Lewis Carroll pop up. In this article we also get a nod to Kafka.
During a conference call today, an attorney who has a niche specialty in Open Records Requests and the Freedom of Information Act posited that democracy is more than just the right to vote, it's the right to challenge your government. There is a lot of truth to this statement because the American political and judicial system is predicated on a diffusion of power— one branch of government cannot usurp the powers delegated to another, and one party in a lawsuit cannot deny relevant information to the other party. Fundamental constitutional rights exist as a baseline that guarantees a minimum amount of liberty, and, consequently, political efficacy, for everyone.
This is only true in the abstract, however, because citizens, journalists, and even lawyers do no have unfettered access to government documents. In War on Terror cases, national security issues further cloud this neat theoretical picture (although something in the recent debates about balancing liberty and security strikes me as unoriginal). But even when compromises are made, certain forums—namely courts—are designed to balance and check competing interests under the auspices of nominally objective proceedings. There are provisions in FISA, for example, that allow courts to adjudicate national security-sensitive claims under secure procedural conditions. Seems fair and rationale, right?
What makes the recent executive privilege/wire tapping cases so maddening, as the Salon article illustrates, is that the Bush Administration seems to be mocking the judicial process by suppressing evidence that has already been released. Information that has been released but remains classified, the Administration’s argument goes, does not provide definitive proof of anything. So even though everyone knows, they don’t officially know, which is legally tantamount to not knowing. [insert Lewis Carroll reference].
And, after checking the headlines just now, it turns out that Congress gave the telecommunications companies immunity for participating in the Bush Administration’s secret wiretapping program. Dystopian reading list to come.
During a conference call today, an attorney who has a niche specialty in Open Records Requests and the Freedom of Information Act posited that democracy is more than just the right to vote, it's the right to challenge your government. There is a lot of truth to this statement because the American political and judicial system is predicated on a diffusion of power— one branch of government cannot usurp the powers delegated to another, and one party in a lawsuit cannot deny relevant information to the other party. Fundamental constitutional rights exist as a baseline that guarantees a minimum amount of liberty, and, consequently, political efficacy, for everyone.
This is only true in the abstract, however, because citizens, journalists, and even lawyers do no have unfettered access to government documents. In War on Terror cases, national security issues further cloud this neat theoretical picture (although something in the recent debates about balancing liberty and security strikes me as unoriginal). But even when compromises are made, certain forums—namely courts—are designed to balance and check competing interests under the auspices of nominally objective proceedings. There are provisions in FISA, for example, that allow courts to adjudicate national security-sensitive claims under secure procedural conditions. Seems fair and rationale, right?
What makes the recent executive privilege/wire tapping cases so maddening, as the Salon article illustrates, is that the Bush Administration seems to be mocking the judicial process by suppressing evidence that has already been released. Information that has been released but remains classified, the Administration’s argument goes, does not provide definitive proof of anything. So even though everyone knows, they don’t officially know, which is legally tantamount to not knowing. [insert Lewis Carroll reference].
And, after checking the headlines just now, it turns out that Congress gave the telecommunications companies immunity for participating in the Bush Administration’s secret wiretapping program. Dystopian reading list to come.
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